Roberto Velez v. Clara Vasquez (2013)

Memorandum of Decision on Motion to Dismiss # 120

The apportionment defendants have filed a motion to dismiss on the ground that the court lacks personal jurisdiction over them due to the counterclaim defendant's failure to comply with General Statutes § 52–102b.   Specifically, the apportionment defendants argue that the court lacks personal jurisdiction over them because the counterclaim defendant (1) served the apportionment complaint beyond the 120–day time limitation provided by the statute, and (2) served an apportionment complaint on existing parties to the action.   For the reasons set forth herein, the motion to dismiss is denied.

FACTS AND PROCEDURAL HISTORY

This action arises out of an alleged accident involving three motor vehicles.   The plaintiff, Roberto Velez, filed a three-count complaint against the defendants, Clara Vasquez, Nigel Ingram, and Unifirst Corporation (Unifirst), on November 30, 2012, with a return date of December 11, 2012.   On January 3, 2013, the plaintiff filed an amended complaint, which alleges the following facts.   Early on the morning of December 5, 2011, Vasquez' motor vehicle sustained a flat tire while traveling northbound on Interstate 91 in New Haven.   Although the car was still operable and could have been moved off the travel portion of the highway, Vasquez parked her car in the right lane and failed to activate her hazard lights or any other signals.   The plaintiff, who was also traveling northbound on Interstate 91 in the right lane, came upon Vasquez' motor vehicle and collided with it.   After colliding with Vasquez' vehicle, the plaintiff's vehicle was hit from behind by a motor vehicle owned by Unifirst and operated by Ingram, an agent, servant, and/or employee of Unifirst's acting within the scope of his employment.   The plaintiff sustained severe physical and emotional injuries, causing him to incur expenses, and his car was substantially damaged, resulting in its total loss.

The first count of the amended complaint alleges that the first collision, in which the plaintiff's vehicle collided with Vasquez' vehicle, was caused by the carelessness and negligence of Vasquez.   The second count alleges that the second collision, in which the plaintiff's vehicle was hit from behind by the vehicle operated by Ingram and owned by Unifirst, was caused by the carelessness and negligence of Ingram.   The third count incorporates the allegations of the second count and attempts to hold Unifirst vicariously liable for Ingram's conduct.   The plaintiff seeks money damages.

On January 11, 2013, Vasquez filed a counterclaim against the plaintiff.   In her counterclaim, Vasquez alleges that the aforementioned accident was caused by the negligence of the plaintiff, who violently crashed without warning into the back of Vasquez' vehicle.   Vasquez further alleges that she sustained serious injuries in the accident.   She seeks money damages.   On May 9, 2013, the plaintiff/counterclaim defendant filed an apportionment complaint on the counterclaim against Ingram and Unifirst.¹  In the apportionment complaint, the counterclaim defendant alleges that the incident described in the counterclaim and any injuries sustained by the counterclaim plaintiff were caused in whole or in part by the negligence of the apportionment defendants.   The apportionment complaint had a return date of May 14, 2013, which was subsequently amended to May 21, 2013.   The marshal's return of service attached to the apportionment complaint states that the apportionment defendants were served process on April 30, 2013, and May 1, 2013.²

On May 14, 2013, the apportionment defendants filed a motion to dismiss the counterclaim defendant's apportionment complaint on the ground that the court lacks personal jurisdiction over them because the counterclaim defendant failed to comply with General Statutes § 52–102b in that (1) the apportionment complaint was filed beyond the 120–day time limitation mandated by the statute, and (2) the apportionment complaint was served on existing parties to the action.³  The motion was accompanied by a memorandum of law in support of the motion.   On June 10, 2013, the counterclaim defendant filed an objection to the motion.   The apportionment defendants filed a reply on July 24, 2013.   The matter was heard at short calendar on August 12, 2013.

DISCUSSION OF LAW

“[A] motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”  (Internal quotation marks omitted.)  Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013).   The motion “tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2011).  “The grounds which may be asserted in this motion are:  (1) lack of jurisdiction over the subject matter;  (2) lack of jurisdiction over the person;  (3) improper venue;  (4) insufficiency of process;  and (5) insufficiency of service of process.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, which is now § 10–31.  “A ruling on a motion to dismiss is neither a ruling on the merits of the action ․ nor a test of whether the complaint states a cause of action ․ [Rather,] [m]otions to dismiss are granted solely on jurisdictional grounds.”  (Citations omitted.)  Discover Leasing, Inc. v. Murphy, 33 Conn.App. 303, 306–07, 635 A.2d 843 (1993).

“[W]hen a particular method of serving process is set forth by statute, that method must be followed ․ Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction ․ The jurisdiction that is found lacking ․ is jurisdiction over the person ․” (Citations omitted.)  Connor v. Statewide Grievance Committee, 260 Conn. 435, 442, 797 A.2d 1081 (2002).  “Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss.”   (Internal quotation marks omitted.)  Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825, 917 A.2d 959 (2007).

I.

The apportionment defendants first argue that § 52–102b(a), which governs the addition of persons as defendants for the apportionment of liability, requires that apportionment complaints be served within 120 days of the return date in the plaintiff's original complaint.   The apportionment defendants further argue that, in the case of a counterclaim, the 120–day time limitation in § 52–102b(a) is measured in relation to the original action, not the counterclaim.   The apportionment defendants' interpretation of the statute would mean that the 120 days started running from the return date of the original complaint filed by Velez (the original plaintiff/counterclaim defendant) against Vasquez, Ingram, and Unifirst (the original defendants).   The apportionment defendants argue that the court must grant the motion to dismiss because the return date on the plaintiff/counterclaim defendant's original complaint was December 11, 2012, and the apportionment defendants were served over 120 days later on April 30, 2013, and May 1, 2013.   In response, the counterclaim defendant argues that the counterclaim must be treated as a new and separate cause of action.   Therefore, the 120–day period prescribed by § 52–102b(a) begins to run when the counterclaim is filed.   The counterclaim defendant's interpretation of the statute would mean that the 120 days started running from the filing of the counterclaim by Vasquez (the original defendant/counterclaim plaintiff) against him.   It is undisputed that the counterclaim was filed on January 11, 2013 and the apportionment defendants were served less than 120 days later.   Specifically, Ingram was served 109 days later, on April 30, 2013, and Unifirst was served 110 days later, on May 1, 2013.

“General Statutes 52–102b(a) is the procedural vehicle by which a defendant in a negligence action may bring in a party for apportionment of liability purposes.”  Henriques v. Magnavice, 59 Conn.App. 333, 337, 757 A.2d 627 (2000).  Section 52–102b(a) provides in relevant part:  “A defendant in any civil action to which section 52–572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability.   Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiff's original complaint.” ⁴  Section 52–102b(e) provides:  “When a counterclaim is asserted against a plaintiff, he may cause a person not a party to the action to be brought in as an apportionment defendant under circumstances which under this section would entitle a defendant to do so.”  (Emphasis added.)   In Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 14, 848 A.2d 418 (2004), our Supreme Court held that the 120–day time limitation in § 52–102b(a) is mandatory, not discretionary.⁵  Additionally, the court held that “noncompliance with § 52–102b implicates a court's personal jurisdiction ․” Id. “Because a failure to comply with the 120 day limit of § 52–102b(a) constitutes a defect in service of process, the failure deprives the court of personal jurisdiction over the apportionment defendant.”  Pedro v. Miller, 281 Conn. 112, 117, 914 A.2d 524 (2007).

The issue, therefore, is whether § 52–102b(e), which grants counterclaim defendants the right to bring apportionment complaints under circumstances which would allow an original defendant to do so, contemplates the 120–day limit of § 52–102b(a) being measured in relation to the original claim or the counterclaim.   The parties do not cite to any cases addressing this specific issue, nor has this court discovered any such cases.⁶  Resolution of the issue presents a question of statutory interpretation.

“When construing a statute, [a court's] fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, [the court] seek[s] to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case ․ In seeking to determine that meaning, General Statutes § 1–2z directs [the court] first to consider the text of the statute itself and its relationship to other statutes.”  (Internal quotation marks omitted.)  Friezo v. Friezo, 281 Conn. 166, 181–82, 914 A.2d 533 (2007).  General Statutes § 1–2z provides:  “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”   Therefore, the court must first determine whether subsections (a) and (e) of the § 52–102b, the statutory provisions at issue here, are ambiguous.

“A statute is ambiguous if, when read in context, it is susceptible to more than one reasonable interpretation.”  (Internal quotation marks omitted.)   Fairchild Heights, Inc. v. Dickal, 305 Conn. 488, 497, 45 A.3d 627 (2012).   Subsections (a) and (e) of § 52–102b are ambiguous because they are susceptible to two reasonable interpretations.   The language of § 52–102b(e) granting counterclaim defendants the right to “cause a person not a party to the action to be brought in as an apportionment defendant under circumstances which under this section would entitle a defendant to do so”;  General Statutes § 52–102b(e);  could be understood to mean that counterclaim defendants receive a 120–day period, just like original defendants receive under the statute.   In other words, because counterclaim defendants are entitled to bring an apportionment complaint under the same circumstances as other defendants, they are entitled to their own 120–day period in which to file an apportionment complaint.   Alternatively, the language could be understood to mean that counterclaim defendants receive the exact same 120–day period as the original defendants, i.e., that there is one 120–day period for all parties on both the original complaint and the counterclaim in which to serve apportionment complaints, and that such period is calculated by reference to the original complaint, not the counterclaim.   Because § 52–102b is “not plain and unambiguous, [the court] also look[s] for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter ․” (Internal quotation marks omitted.)  Mayfield v. Goshen Volunteer Fire Co., 301 Conn. 739, 744, 22 A.3d 1251 (2011).

In this analysis, it is instructive to first “briefly summarize the development of the tort reform legislation that preceded the passage of § 52–102b, which highlights the genesis of the current statutory right to apportion liability.”  Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 23.   In “Tort Reform I and II ․ the legislature abolished the common-law rule of joint and several liability and replaced it with a system based on principles of comparative fault ․ Tort Reform I provided that each defendant would initially be liable for only that percentage of his negligence that proximately caused the injury, in relation to one hundred percent, that is attributable to each person whose negligent actions were a proximate cause of the damages․  Subsequently, one year after Tort Reform I, the legislature enacted Tort Reform II, which limited the universe [of negligent persons] to only those individuals who were parties to the legal action or who were specifically identified in § 52–572h(n).”  (Citations omitted;  emphasis omitted;  internal quotation marks omitted.)  Id., 23–24.   But “Tort Reform II ․ overlooked two significant details required to implement effectively the newly created fault apportionment system.   Although § 52–572h created the right for a defendant to apportion liability to any party to the action, it did not include a means to invoke that right nor did it address the effect of the underlying statute of limitations on the apportionment claim ․ Specifically, § 52–572h failed to provide for a means to make a nonparty a party to the action for the purpose of apportioning liability.”  Id., 24.  Section 52–102b was enacted to address these issues.   See id., 25 (reviewing the relevant legislative history of S.B. 1012, which became § 52–102b).  “[Section] 52–102b was designed to create an effective means of accomplishing apportionment with reasonable certainty.”   (Emphasis in original;  internal quotation marks omitted.)  Pedro v. Miller, supra, 281 Conn. 121.

Nothing in the available legislative record speaks directly to the legislature's intent regarding the specific issue here.   A bill analysis provided by the Office of Legislative Research, however, does address the nature of a counterclaim defendant's ability to bring apportionment complaints.   The analysis described the provision as follows:  “[W]hen a defendant asserts a counterclaim against the plaintiff, the bill allows the plaintiff to bring people into the suit as apportionment defendants in the same manner as a defendant can.”  (Emphasis added.)   Office of Legislative Research, Bill Analysis, Senate Bill No. 1012, “An Act Concerning Apportionment of Liability,” (1995), available at http://www.cga.ct.gov/ps95/ba/1995SB–01012–R00–BA.htm (last visited November 1, 2013).   This language—providing that counterclaim defendants “may bring people into the suit as apportionment defendants in the same manner as a defendant can”—suggests that the Office of Legislative Research interpreted § 52–102b to provide counterclaim defendants the apportionment rights granted to original defendants, i.e., providing counterclaim defendants with their own 120–day period in which to file apportionment complaints in the same manner that an original defendant would receive 120 days to do so.  “[B]ill analys[es] are prepared for the benefit of members of the General Assembly, solely for purposes of information, summarization and explanation and do not represent the intent of the General Assembly or either house thereof for any purpose ․ Although the comments of the [O]fflce of [L]egislative [R]esearch are not, in and of themselves, evidence of legislative intent, they properly may bear on the legislature's knowledge of interpretive problems that could arise from a bill.”  (Internal quotation marks omitted.)  Tuxis Ohr's Fuel, Inc. v. Administrator, Unemployment Compensation Act, 309 Conn. 412, 427 n.13, 72 A.3d 13 (2013).   Therefore, while the bill analysis itself cannot be considered as evidence of legislative intent, the document was available to the legislature when it considered the bill, and thus bears upon the legislature's knowledge of interpretative issues that could arise regarding the time limitation for serving apportionment complaints on counterclaims, and the Office of Legislative Research's apparent resolution of this issue.   Cf. Raftopol v. Ramey, 299 Conn. 681, 734, 12 A.3d 783 (2011) (Zarella, J., concurring) (finding support for a particular interpretation of a statute where “the office of fiscal analysis and office of legislative research reports were available to the legislature when it was considering the revised language, and all ․ [the reports] consistently construed the new language” in the same manner [footnote omitted] ).

In addition to reviewing the legislative history and circumstances surrounding the enactment of § 52–102b, it is also instructive to review the statute's relationship to Connecticut law governing counterclaims.   The apportionment defendants argue that their interpretation of § 52–102b, which would allow counterclaim defendants a 120–day time frame for bringing apportionment complaints measured in relation to the counterclaim, is consistent with Connecticut law, which treats counterclaims as new and separate causes of action.   This argument is persuasive.  “Our rules of practice and case law make clear that, although counterclaims arise only in response to an action initiated by another party, they are essentially independent actions brought by the defendant against the plaintiff, which courts entertain concurrently simply in the interests of judicial economy.   See, e.g., Home Oil Co. v. Todd, 195 Conn. 333, 341, 487 A.2d 1095 (1985) (‘Under our rules of practice, a counterclaim, if proper, is an independent action.   See Practice Book §§ [10–10, 10–54, 10–55] ․ It has been defined as a cause of action existing in favor of a defendant against a plaintiff which a defendant pleads to diminish, defeat or otherwise affect a plaintiff's claim and also allows a recovery by the defendant.’  [Citations omitted;  internal quotation marks omitted.] );   Moran v. Lewis, 131 Conn. 680, 681, 41 A.2d 905 (1945) (‘[T]he defendant's counterclaim ․ is in substance an action wherein affirmative relief is sought by the defendant against the plaintiff.   In effect, it was an action brought by the defendant against the plaintiff.’  [Emphasis added.] );  Davis v. Naugatuck Valley Crucible Co., ․ 103 Conn. [36,] 37, 130 A. 162 [ (1925) ] (counterclaim ‘sets forth an independent cause of action [not a matter of recoupment], which might have been made the basis of a separate action by the defendant, and is open to the same attack as if brought as a separate action’ [emphasis added] ).”  (Emphasis in original.)  Chief Information Officer v. Computers Plus Center, Inc., 310 Conn. 60, 94–95, 74 A.3d 1242 (2013).

The apportionment defendants, however, argue that the court in Lauretti v. Dube, Superior Court, judicial district of New Britain, Docket No. CV–04–4002203–S (October 11, 2005, Shapiro, J.) (40 Conn. L. Rptr. 225), “essentially [rejected] the ․ argument” that the 120–day time limitation runs in relation to the counterclaim, and also that “adopting this reasoning would allow joinder of an apportionment defendant without limitation, which is what the legislature sought to avoid.” (7/24/13, Apportionment Def.'s Reply to Objection to Mot. Dismiss, p.5, n.2.) Neither of these assertions are persuasive.  Lauretti did not address counterclaims at all, but rather concerned third-party apportionment complaints.   In Lauretti, the original defendant filed an apportionment complaint against a third party, K–Co Electric, LLC (first apportionment defendant).  Lauretti v. Dube, supra, 40 Conn. L. Rptr. 225.   Subsequently, more than 120 days from the return date of the plaintiff's original complaint, the first apportionment defendant filed an apportionment complaint against two third parties:  Home Depot USA, Inc. and Home Depot Supplies, Inc. (second apportionment defendants).  Id. The second apportionment defendants moved to dismiss the complaint on the ground that more than 120 days had passed since the return date of the plaintiff's original complaint.  Id. The first apportionment defendant argued that, because § 52–102b(b) guarantees an apportionment defendant all remedies available to an original defendant,⁷ the 120–day period should run from the return date on the third-party apportionment complaint, not the plaintiff's original complaint.  Id. The court rejected this argument, concluding that “[t]he logical extension of [the first apportionment defendant's] argument is that succeeding apportionment defendants would have 120 days from the return date of [the most recent] apportionment complaint to bring in ‘fourth party apportionment defendants,’ a process which could continue on without any outside time limitation, as apportionment defendants sought, as apportionment plaintiffs, to bring in new parties ․ [T]his is precisely what our legislature designed § 52–102b to avoid, not promote.”  (Citation omitted.)  Id., 226.

The argument rejected in Lauretti and the other cases cited by the apportionment defendants;  Dugan v. Vernel Ltd. Partnership, Superior Court, judicial district of Waterbury, Docket No. CV–04–0183682–S (July 5, 2005, Gallagher, J.) (39 Conn. L. Rptr. 808);  Cooksley v. New Britain, Superior Court, judicial district of New Britain, Docket No. CV–99–0498574–S (April 2, 2001, Shapiro, J.) (29 Conn. L. Rptr. 631);  is distinguishable from the counterclaim defendant's argument here.   In the present case, the counterclaim defendant argues that the counterclaim is a new and separate cause of action and, thus, counterclaim defendants receive their own 120–day time period in which to bring apportionment complaints.   Unlike the argument rejected in Lauretti, this would not lead to a potentially endless process of new apportionment complaints.   Rather, the counterclaim defendant's interpretation would grant counterclaim defendants a concrete period of time with a certain end date in which to bring apportionment complaints on a counterclaim.   Our Supreme Court has held that “ § 52–102b was designed to create an effective means of accomplishing apportionment with reasonable certainty.”  (Emphasis in original.)  Pedro v. Miller, supra, 281 Conn. 121.   Construing the statute to allow counterclaim defendants 120 days measured in relation to the counterclaim in which to serve apportionment complaints on the counterclaim is consistent with this goal.

Nonetheless, the apportionment defendants note that § 52–102b(a) measures the time to file an apportionment complaint in relation to a return date.   Because a counterclaim lacks a return date, the apportionment defendants argue that the counterclaim defendant's interpretation of § 52–102b contradicts the plain language of the statute.   This argument, however, ignores the nature of return dates under Connecticut law.   Our statutes, rules of practice, and case law clarify that the return date lacks independent significance;  rather, it is simply a date by which other dates are measured.   See, e.g., Coppola v. Coppola, 243 Conn. 657, 661 n.8, 707 A.2d 281 (1998) (“return date determines how to compute the time for service of process ․ the time for filing the writ with the court ․ the time for the defendant to file an appearance with the court ․ and the time for the defendant to respond to the complaint” [citations omitted] ).  General Statutes § 52–46a provides in relevant part that “[p]rocess in civil actions ․ shall be returned ․, to the clerk of [the Superior Court] at least six days before the return day.”   This statute is mandatory.   See, e.g., Rogozinski v. American Food Service Equipment Corp., 211 Conn. 431, 433, 559 A.2d 1110 (1989).   Therefore, there will always be at least six days between the filing of the case in the Superior Court clerk's office and the return date.   Thus, by allowing 120 days from the return date in which to serve apportionment complaints, the legislature also contemplated allowing at least 126 days from the filing date (the six days between the filing of the case and the return date plus the 120 days provided by § 52–102b(a)) in which to serve apportionment complaints.   In the present case, it is undisputed that the counterclaim was filed on January 11, 2013, and that the apportionment defendants Ingram and Unifirst were served on April 30, 2013, and May 1, 2013, 109 and 110 days later, respectively.   Therefore, the apportionment complaints were served well within the period of at least 126 days from the filing date contemplated by the legislature.

The counterclaim defendant's interpretation of the statute is consistent with the purpose of the apportionment statute and the nature of counterclaims under Connecticut law, and effectuates the legislature's apparent desire to treat counterclaim defendants in the same manner as other defendants for apportionment purposes.   By contrast, the apportionment defendants' interpretation is inconsistent with existing Connecticut law in that it treats counterclaims as part of the original action despite the fact that counterclaims are independent actions.   See, e.g., Home Oil Co. v. Todd, 195 Conn. 333, 341, 487 A.2d 1095 (1985).   Furthermore, it treats counterclaim defendants differently than original defendants for no discernible public policy purpose.  “[I]f two constructions of a statute are possible, [the courts] will adopt the one that makes the statute effective and workable ․” (Internal quotation marks omitted.)  Rainforest Café, Inc. v. Dept. of Revenue Services, 293 Conn. 363, 378, 977 A.2d 650 (2009).   The effective and workable interpretation of § 52–102b(a) and (e) provides counterclaim defendants a 120–day period measured in relation to the counterclaim, not the original complaint, in which to bring apportionment claims.

Because the apportionment complaint on the counterclaim was served on the apportionment defendants within the time frame contemplated in § 52–102b, the motion to dismiss is denied on this ground.

II.

The apportionment defendants next argue that the apportionment complaint must be dismissed on the ground that § 52–102b bars apportionment complaints against existing parties.   Because they are existing parties to the original lawsuit, the apportionment defendants argue that the court therefore lacks personal jurisdiction over them.   In response, the counterclaim defendant argues that (1) the apportionment defendants are not parties to the counterclaim, which is a separate action for purposes of the statute, and (2) several Superior Court decisions have held that the statute permits apportionment complaints under similar circumstances.

Section 52–102b(a) provides in relevant part:  “A defendant in any civil action to which section 52–572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability.”  “Connecticut appellate authority has not yet determined whether a defendant may bring an apportionment claim or counterclaim against a current party to an action.”  Benway v. Belmont, Superior Court, judicial district of Waterbury, Docket No. CV–12–6016131–S (March 28, 2013, Roche, J.) (55 Conn. L. Rptr. 824, 825).   In the present matter, both parties acknowledge a Superior Court split of authority on this issue.  “One line of cases, which has been referred to as the ‘majority view,’ interprets the plain language of ․ § 52–102b and certain of its legislative history to preclude the filing of an apportionment claim against one who is already a party to the underlying action ․ The contrary view, which is often characterized as the ‘minority view,’ concludes that the purpose of § 52–102b is not to bar the filing of apportionment complaints against existing parties, but rather to provide a statutory means by which defendants may add and seek apportionment from non-parties ․ These ‘minority view’ opinions have determined that because § 52–102b is irrelevant to persons that are already parties to a suit ․ the law does not preclude the filing of an apportionment action against existing parties.” ⁸  (Citations omitted;  internal quotation marks omitted.)   Prete v. Borrelli, Superior Court, judicial district of New Haven, Docket No. CV–11–6022696–S (May 22, 2012, Gold, J.) (54 Conn. L. Rptr. 88, 89).   The apportionment defendants urge the court to adopt the “majority view” while the counterclaim defendant advocates adoption of the “minority view.”   The court, however, need not resolve this issue because the apportionment defendants have selected an improper procedural vehicle to pursue their argument.

The motion currently before the court is a motion to dismiss.   The Practice Book provides that the proper grounds for a motion to dismiss are:  “(1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process.”  Practice Book § 10–31(a).   Because all of these grounds implicate jurisdiction, “[m]otions to dismiss are granted solely on jurisdictional grounds.”  (Citations omitted;  emphasis added.)  Discover Leasing, Inc. v. Murphy, supra, 33 Conn.App. 307.   Here, the apportionment defendants cite to Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 10, for the proposition that our Supreme Court has “held that noncompliance with § 52–102b implicates a court's personal jurisdiction, and thus a motion to dismiss ․ is the proper procedural vehicle to challenge an apportionment complaint on [the ground that § 52–102b bars apportionment complaints against existing parties].” (5/14/13, Apportionment Def.'s Mem., p. 5, n.2.) But Lostritto concerned only one particular aspect of § 52–102b:  the statute's 120–day time limitation.  Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 14 (holding that the 120–day time limitation in § 52–102b(a) is mandatory and that noncompliance with the provision implicates personal jurisdiction).   In Lostritto, the Supreme Court first established that the 120–day time limitation in § 52–102b is mandatory, not directory.  Id., 18–31.   Then, the court turned to jurisdictional issues.  Id., 31.   In doing so, the court explicitly limited its discussion of jurisdictional issues to a “determin[ation of] whether the mandatory 120 day time limitation implicates personal or subject matter jurisdiction.”  Id.

Before determining that the 120–day time limitation implicates personal jurisdiction, the court summarized the nature of personal jurisdiction, and how it differs from subject matter jurisdiction.  “A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy ․ A defect in process, however, such as an improperly executed writ, implicates personal jurisdiction, rather than subject matter jurisdiction ․ When a particular method of serving process is set forth by statute, that method must be followed ․ Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction ․ The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter.”  (Citations omitted;  internal quotation marks omitted.)  Id. Applying these principles, the court held that the 120–day limitation in § 52–102b is, by its express terms, a service provision, implicating personal rather than subject matter jurisdiction.  Id., 33.

In the present case, the apportionment defendants premise their motion to dismiss entirely on the argument that the court lacks personal jurisdiction.   The apportionment defendants point to Lostritto in support of their position that the issue of whether § 52–102b allows apportionment liability against an existing party implicates personal jurisdiction.   As the foregoing discussion makes clear, however, Lostritto does not address whether § 52–102b permits apportionment complaints against parties to the underlying action, or whether that issue implicates personal jurisdiction.   Moreover, Lostritto 's discussion of the nature of personal jurisdiction strongly indicates that this issue does not implicate personal jurisdiction because it does not concern a matter related to the service of process.   Furthermore, recent Superior Court decisions have not understood Lostritto to stand for the proposition that the issue of whether § 52–102b permits apportionment complaints against parties to the underlying action is a matter implicating personal jurisdiction.   See, e.g., Corcoran v. Lukan, Superior Court, judicial district of New Haven, Docket No. CV–12–6030018–S (October 5, 2012, Wilson, J.) (54 Conn. L. Rptr. 795) (addressing the issue of whether § 52–102b bars apportionment complaints against existing parties in a memorandum of decision on a motion to strike);  Orengo v. Barksdale, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV–09–5026062–S (January 26, 2010, Levin, J.) (49 Conn. L. Rptr. 357) (same);  Blazer v. Gil, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–07–5003123–S (June 15, 2007, Tobin, J.) (43 Conn. L. Rptr. 619) (same);  Vallejos v. Santiago, Superior Court, judicial district of New London, Docket No. CV–10–6006089–S (May 23, 2011, Cosgrove, J.) (52 Conn. L. Rptr. 49) (same);  Hilarion v. Yank, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV–10–6006792–S (September 9, 2011, Dooley, J.) (52 Conn. L. Rptr. 574) (same);  Iwanczuk v. Zhen, Superior Court, judicial district of New Haven, Docket No. CV–07–5002679–S (May 7, 2008, Taylor, J.) (45 Conn. L. Rptr. 546) (same);  Roklen v. Presnell, Superior Court, judicial district of New Haven, Docket No. CV–04–0287569–S (March 15, 2006, Taylor, J.) (40 Conn. L. Rptr. 883) (same);  Benway v. Belmont, supra, 55 Conn. L. Rptr. 824 (same).

The issue of whether § 52–102b precludes apportionment complaints against one who is already a party to the action is a vexing issue that has created a substantial Superior Court split of authority.   The issue, however, is not one of personal jurisdiction.   Therefore, the apportionment defendants' motion to dismiss, which is premised entirely on personal jurisdiction, is denied on this ground.

CONCLUSION

For the foregoing reasons, the motion to dismiss is denied.

By the Court,

Nazzaro, J.

FOOTNOTES

FN1. Hereafter, for the sake of clarity, Velez will be referred to as the counterclaim defendant, Vasquez will be referred to as the counterclaim plaintiff, and Ingram and Unifirst will be referred to collectively as the apportionment defendants..  FN1. Hereafter, for the sake of clarity, Velez will be referred to as the counterclaim defendant, Vasquez will be referred to as the counterclaim plaintiff, and Ingram and Unifirst will be referred to collectively as the apportionment defendants.

FN2. According to the marshal's return, Ingram was served on April 30, 2013, and Unifirst was served on May 1, 2013..  FN2. According to the marshal's return, Ingram was served on April 30, 2013, and Unifirst was served on May 1, 2013.

FN3. In their motion to dismiss, the apportionment defendants also argued that the apportionment complaint should be dismissed because the counterclaim defendant failed to return the apportionment complaint to court at least six days prior to the return date as required by General Statutes § 52–46a.   The apportionment complaint was filed on May 9, 2013 and had a return date of May 14, 2013.  Section 52–46a provides in relevant part:  “Process in civil actions ․ returnable to the Superior Court ․ [shall be returned] to the clerk of [the] court at least six days before the return day.”   On June 10, 2013, the counterclaim defendant amended the return date on the apportionment complaint to May 21, 2013.   In his objection to the motion to dismiss, the counterclaim defendant argues that the amendment cures any defect regarding the return date.   In their reply, the apportionment defendants concede that the counterclaim defendant's amendment cures the defect and accordingly withdraw the argument.   Therefore, this memorandum does not address this argument..  FN3. In their motion to dismiss, the apportionment defendants also argued that the apportionment complaint should be dismissed because the counterclaim defendant failed to return the apportionment complaint to court at least six days prior to the return date as required by General Statutes § 52–46a.   The apportionment complaint was filed on May 9, 2013 and had a return date of May 14, 2013.  Section 52–46a provides in relevant part:  “Process in civil actions ․ returnable to the Superior Court ․ [shall be returned] to the clerk of [the] court at least six days before the return day.”   On June 10, 2013, the counterclaim defendant amended the return date on the apportionment complaint to May 21, 2013.   In his objection to the motion to dismiss, the counterclaim defendant argues that the amendment cures any defect regarding the return date.   In their reply, the apportionment defendants concede that the counterclaim defendant's amendment cures the defect and accordingly withdraw the argument.   Therefore, this memorandum does not address this argument.

FN4. General Statutes § 52–572h “supplanted [the] rule of joint and several liability with a system of apportioned liability in which each defendant is liable for only his proportionate share of damages according to his percentage of negligence that proximately caused the plaintiff's injury ․ The stated purpose behind the apportionment statute is to prevent any one defendant from having to pay more than his proportional share of the damages.”  (Citation omitted.)  Alfano v. Randy's Wooster Street Pizza Shop II, Inc., 90 Conn.App. 766, 777, 881 A.2d 379 (2005)..  FN4. General Statutes § 52–572h “supplanted [the] rule of joint and several liability with a system of apportioned liability in which each defendant is liable for only his proportionate share of damages according to his percentage of negligence that proximately caused the plaintiff's injury ․ The stated purpose behind the apportionment statute is to prevent any one defendant from having to pay more than his proportional share of the damages.”  (Citation omitted.)  Alfano v. Randy's Wooster Street Pizza Shop II, Inc., 90 Conn.App. 766, 777, 881 A.2d 379 (2005).

FN5. The Lostritto court, however, recognized that the mandatory time limit is not without exception.  Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 35–36, 848 A.2d 418 (2004).  “[M]andatory time limitations must be complied with absent an equitable reason for excusing compliance, including waiver or consent by the parties.”   (Internal quotation marks omitted.)  Id. Subsequently, in Pedro v. Miller, 281 Conn. 112, 119, 914 A.2d 524 (2007), our Supreme Court encountered a situation where “the legal [and factual] basis for the defendants to seek apportionment ․ did not arise until after—indeed, long after—the 120 day limit already had passed.   Consequently, it was impossible for the defendants to serve the apportionment claim ․ within the 120 day limit established by § 52–102b(a).   Such a circumstance presents a compelling equitable reason for excusing compliance with the limit set forth in that statute.”   In the present case, counsel for the counterclaim defendant, Attorney Deborah L. Bradley, suggested for the first time at oral argument that equitable reasons exist in the present case for noncompliance with the 120–day limit.   Bradley explained that her client, the counterclaim defendant, had no reason to seek apportionment until the counterclaim was brought.   Bradley noted that she represents the counterclaim defendant as to the counterclaim only and that she did not file an appearance until March 27, 2013.  (The counterclaim defendant is represented by different counsel as a plaintiff in the original action.)   Bradley points out that if the court agrees with the apportionment defendants' position that the 120–day period runs from the return date of the complaint in the original action and thus the period to file an apportionment complaint expired on April 10, 2013 (120 days after the original return date of December 11, 2012), that would have left Bradley with just a couple weeks in which to file a counterclaim.   Bradley further represented to the court that she was unsure if she was in possession of an accident report regarding the incident during those weeks.   Bradley argued that these circumstances constitute an equitable reason under Pedro for excusing compliance with the 120–day time limitation of § 52–102b(a).   In light of this court's determination that a counterclaim is a separate action for the purposes of § 52–102b and, thus, the statute's 120–day limit is measured in relation to the counterclaim, not the original action, this memorandum does not address the merits of this alternative argument..  FN5. The Lostritto court, however, recognized that the mandatory time limit is not without exception.  Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 35–36, 848 A.2d 418 (2004).  “[M]andatory time limitations must be complied with absent an equitable reason for excusing compliance, including waiver or consent by the parties.”   (Internal quotation marks omitted.)  Id. Subsequently, in Pedro v. Miller, 281 Conn. 112, 119, 914 A.2d 524 (2007), our Supreme Court encountered a situation where “the legal [and factual] basis for the defendants to seek apportionment ․ did not arise until after—indeed, long after—the 120 day limit already had passed.   Consequently, it was impossible for the defendants to serve the apportionment claim ․ within the 120 day limit established by § 52–102b(a).   Such a circumstance presents a compelling equitable reason for excusing compliance with the limit set forth in that statute.”   In the present case, counsel for the counterclaim defendant, Attorney Deborah L. Bradley, suggested for the first time at oral argument that equitable reasons exist in the present case for noncompliance with the 120–day limit.   Bradley explained that her client, the counterclaim defendant, had no reason to seek apportionment until the counterclaim was brought.   Bradley noted that she represents the counterclaim defendant as to the counterclaim only and that she did not file an appearance until March 27, 2013.  (The counterclaim defendant is represented by different counsel as a plaintiff in the original action.)   Bradley points out that if the court agrees with the apportionment defendants' position that the 120–day period runs from the return date of the complaint in the original action and thus the period to file an apportionment complaint expired on April 10, 2013 (120 days after the original return date of December 11, 2012), that would have left Bradley with just a couple weeks in which to file a counterclaim.   Bradley further represented to the court that she was unsure if she was in possession of an accident report regarding the incident during those weeks.   Bradley argued that these circumstances constitute an equitable reason under Pedro for excusing compliance with the 120–day time limitation of § 52–102b(a).   In light of this court's determination that a counterclaim is a separate action for the purposes of § 52–102b and, thus, the statute's 120–day limit is measured in relation to the counterclaim, not the original action, this memorandum does not address the merits of this alternative argument.

FN6. For reasons explained later in this memorandum, the cases cited by the apportionment defendants to support their argument arose under different circumstances and are distinguishable from the present case..  FN6. For reasons explained later in this memorandum, the cases cited by the apportionment defendants to support their argument arose under different circumstances and are distinguishable from the present case.

FN7. General Statutes § 52–102b(b) provides in relevant part:  “The apportionment defendant shall have available to him all remedies available to an original defendant including the right to assert defenses, set-offs or counterclaims against any party.”.  FN7. General Statutes § 52–102b(b) provides in relevant part:  “The apportionment defendant shall have available to him all remedies available to an original defendant including the right to assert defenses, set-offs or counterclaims against any party.”

FN8. It is noted that “it may no longer be appropriate to characterize this position as the ‘minority view.’  ․ [A] review of the case law suggests that the division among the superior court judges is approaching an even split.   Indeed, given the clear trend toward the adoption of the ‘minority view’ in recent cases, it may well be that the so-called ‘minority view’ now reflects the opinion of the majority of the judges who have had occasion to rule upon this particular question.”  (Internal quotation marks omitted.)   Corcoran v. Lukan, Superior Court, judicial district of New Haven, Docket No. CV–12–6030018–S (October 5, 2012, Wilson, J.) (54 Conn. L. Rptr. 795, 798 n.1)..  FN8. It is noted that “it may no longer be appropriate to characterize this position as the ‘minority view.’  ․ [A] review of the case law suggests that the division among the superior court judges is approaching an even split.   Indeed, given the clear trend toward the adoption of the ‘minority view’ in recent cases, it may well be that the so-called ‘minority view’ now reflects the opinion of the majority of the judges who have had occasion to rule upon this particular question.”  (Internal quotation marks omitted.)   Corcoran v. Lukan, Superior Court, judicial district of New Haven, Docket No. CV–12–6030018–S (October 5, 2012, Wilson, J.) (54 Conn. L. Rptr. 795, 798 n.1).

Nazzaro, John J., J.